High Court provides rare guidance on the meaning of ‘editor’ in defamation claims

This article considers the decision of Mr Justice Saini in Chris Packham CBE v Dominic Wightman and others [2023] EWHC 1256 (KB).  The claimant, a naturalist, campaigner and television presenter, was awarded £90,000 in damages by the High Court in respect of allegations published by the first and second defendants in articles in Country Squire Magazine (CSM) and on Twitter. The case provides rare authority on the interpretation and application of the term ‘editor’ for the purposes of establishing liability for publication under section 1 of the Defamation Act 1996 (DeA 1996). It also provides useful insight into the court’s approach to fixing damages in circumstances where a defendant’s conduct has been highly aggravating.

What are the practical implications of this case?

There are several discrete issues arising from the judgment that will be of interest to defamation practitioners.

The case provides authority on the interpretation of DeA 1996, s 1 which defines ‘author’, ‘editor’ and ‘publisher’ for the purposes of determining responsibility for publication. The third defendant, Paul Read (D3), had been given by-line credits by CSM, which might, without further investigation, suggest that he was an author of the articles or at least had some editorial oversight. On this basis, the claimant submitted that D3 was liable for publication of four of the articles. The Honourable Mr Justice Saini rejected this submission. The ‘real issue was whether D3 had effective editorial control over content, not whether such a representation was made to readers’ (para [63]). On any view, the minor and largely cosmetic changes D3 made to the articles were more akin to the contribution of a sub-editor, which ‘does not equate to editorial responsibility within the meaning of section 1(2) of the 1996 Act’ (para [63]).

The decision suggests that where responsibility for publication is in issue, lawyers will need to look carefully at the defendants’ substantive role in the publication process as much as any title ascribed to them. This is especially so where the publication is not a mainstream/traditional one.

The judge’s remarks at paras [70]–[76] also provide a useful reminder on the need for claimants to carefully particularise and provide evidence for serious harm to reputation in respect of each publication complained of.  Aggregating harm caused by multiple publications, or simply presenting the number of followers a defendant has on social media will not suffice; defamation liability needs to be provided with ‘cogent evidence’.

Finally, the court award £90,000 in damages to Mr Packham, a high amount in defamation. The size of the award reflected the first and second defendant’s aggravating conduct, though interestingly, Saini J chose not to make a separate award in relation to aggravation (para [195]). Instead, he adopted the approach in Lachaux v Independent Print Media [2021] EWHC 1797 (QB) and fixed a single sum taking into account all of the relevant conduct.

What was the background?

The claimant, Chris Packham CBE, is a well-known media personality, naturalist and animal rights campaigner. The first defendant, Dominic Wightman (D1) is the editor of CSM. The second defendant, Nigel Bean (D2) is an IT consultant and regular contributor to CSM. The third defendant Paul Read, a retired computer programmer, provides CSM with gratuitous proofreading and subediting services.

Mr Packham sued the defendants in respect of a large number of articles on CSM’s website and several tweets.  At a preliminary issue trial on meaning (Packham v Wightman [2002] EWHC 482 (QB)), Mr Justice Johnson held that the publications complained of accused Mr Packham of various forms of dishonesty, which could broadly be distilled into three separate allegations:

• that Mr Packham had dishonestly raised funds by stating that tigers had been rescued from a circus in Spain where they had been mistreated, whereas Mr Packham was aware that the tigers had been well-treated and donated by the circus to an animal sanctuary (the Big Cat Circus Allegation)
• that at the start of the coronavirus (COVID-19) pandemic, Mr Packham dishonestly sought to raise money for the Wildheart Sanctuary by appealing for donations while failing to reveal that the Sanctuary had received or was due to receive a £500,000 insurance pay-out (the Insurance Allegation), and
• that Mr Packham had lied when he said that gamekeepers on two Scottish estates in Muirburn were burning peat during the 2021 UN Climate Conference, when he knew that was untrue (the Muirburn Allegation’)

D1 and D2 sought to defend all the allegations on the basis that they were publications on a matter of public interest and, additionally, that the Big Cat Circus Allegation was substantially true. D3 denied responsibility for publication of the Articles and contended that the retweets of the articles for which he was responsible had not caused serious harm to Mr Packham’s reputation.

What did the court decide?

D1 and D2’s defences failed in respect of all three allegations.

The defendants had ‘failed to even come close to establishing the substantial truth of the Circus Big Cat Allegation’ (para [135]). The judge found that Mr Packham had honestly and reasonably believed that the tigers had been ‘rescued’, as opposed to donated by the circus to the sanctuary, and that the tigers had suffered ill-treatment at the circus in question (para [135]).

Equally, D1 and D2’s defence of publication on a matter of public interest failed on all three allegations. The defendants had not conducted their investigations into the Big Cat Circus Allegation with anything like the rigour required to avail themselves of the section 4 defence; instead, they ‘targeted Mr Packham as a person against whom they had an agenda’ (para [161]).

In respect of the other two allegations, Saini J held that D1 and D2 did not reasonably believe that publication was on a matter of public interest.

D3 had initially sought to defend the claim on much the same grounds as D1 and D2, but shortly before trial, and having engaged new counsel, radically recast his defence to:

• deny responsibility for publication of the articles on the basis that he was not an editor or author within the scope of DeA 1996, s 1, and
• contend that the retweets for which he was responsible had not caused serious harm to Mr Packham’s reputation

The court was satisfied that D3’s role at CSM was equivalent to a sub-editor, and that he did not exercise the editorial responsibility which would give rise to liability under DeA 1996, s 1 in respect of CSM’s articles. As regards the retweets, the claimant had not provided specific evidence of how they had caused harm; reference to the gravity of the allegations and D3’s following of c 4600 across his two accounts were not, in isolation, sufficient to demonstrate that harm to the claimant’s reputation had flowed specifically from those publications.

The judge awarded damages of £90,000 to Mr Packham. This high figure was a reflection of, among other things, the fact that D1 and D2 had maintained until the third day of the trial that Mr Packham had forged a death threat to himself. Saini J found that this contention was ‘patently unsustainable’ and that both D1 and D2 had been on notice since 3 November 2022 that they had no credible expert evidence to support the assertion.

This article was written by Percy Preston of Brett Wilson LLP's media and communications law department.  It was first published on Lexis®PSL on 8 June 2023 and can be found here (£).  It is reproduced with permission and thanks.

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